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Public unionism's 'gravest threat' still looms large

Last Friday, I laid out policy scenarios that might result from the U.S. Supreme Court decision in Harris v. Quinn. To recap, the case involved plaintiff Pam Harris and other Illinois home-healthcare workers whom public-employee unions had successfully organized (with the help of their allies in the Democratic political establishment). The problem was that Harris and others didn’t want to subsidize the union, didn’t think they were even public employees, and simply wanted to go back to providing healthcare services to their patients, who were often sick family members.

I theorized that the Court would either (a) side with the unions and tell healthcare providers to take it up with the state legislature, (b) side with the healthcare providers but limit the decision to them alone, or (c) extend the decision broadly to say that all public employees needn’t pay union dues or “fair share” payments if they did not want to subsidize the union’s activities. Option “c” is a doomsday scenario for public unions (the unions’ “gravest threat” in the eyes of one commentator) and would effectively prohibit “fair share” payments for workers nationwide.

Why this would cripple the unions isn’t hard to figure out. Last year, the Wisconsin Education Association Council reported a nearly 30 percent drop in membership in the two years since the Act 10 collective-bargaining law took effect. (Act 10 eliminated “fair share” payments, though it also limited collective bargaining, which the doomsday scenario would not do.)

On Monday, the Court ruled decidedly in favor of Harris in a 5–4 decision along ideological lines. The justices decided that part-time home-healthcare workers were not public employees and could not be required to pay “fair share” payments—a big loss for unions looking to grow their ranks. The decision was narrow, however (essentially, the justices went with option “b”) and may not have immediate implications for education, though it might dissuade the AFT or NEA from attempting to organize part-time providers of education services (say, course-choice providers) down the road.

The most interesting part of the ruling, however, was the discussion of Abood, a 1977 precedent that underpins much of the public-employee unions’ legal justification for charging nonmembers for their services. The majority opinion, written by Justice Alito, spent a good amount of time questioning the logic of that “anomalous” precedent. Alito also brought up the Knox case from 2012 with a stern warning that “preventing nonmembers from freeriding on the union’s efforts” is a rationale “generally insufficient to overcome First Amendment objections.”

So while there was no sweeping ruling this week, stay tuned—because there certainly could be one in the future. In particular, Friedrichs v. California Teachers Association is a case to watch. The objections raised in that case are similar to Harris but involve full-time teachers, not part-time, home-based workers. The case, which is moving through the courts with the help of the Center for Individual Rights, is currently before the Ninth Circuit Court of Appeals.

With Knox and Harris, the Court is slowly chipping away at the ability of public unions to extract funds from workers who do not wish to associate with them. Assuming the majority of the Court remains conservative, it’s not unthinkable that a huge chunk of union power could soon fall away. While some were expecting the cascade to begin today, Friedrichs seems like the next most likely opportunity. Until then, it might be good to keep your hard hat handy.

This post was edited slightly on July 2, 2014, for inclusion in the Education Gadfly Weekly.